B-165871, MAR. 13, 1969

B-165871: Mar 13, 1969

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INC.: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23. THE SUBJECT RFP WAS ISSUED ON OCTOBER 30. PURSUANT TO 10 U.S.C. 2304 (A) (2) WHICH AUTHORIZES PROCUREMENT BY NEGOTIATION INSTEAD OF FORMAL ADVERTISING IF THE PUBLIC EXIGENCY WILL NOT PERMIT DELAY. BECAUSE THE COMPACTORS WERE PART OF THE URGENT HIGHWAY RESTORATION PROGRAM IN VIETNAM AND WERE ASSIGNED A PRIORITY DESIGNATOR 02. HYSTER COMPANY'S FINAL OFFER WAS AT $42. 942 ALTHOUGH YOUR FINAL UNIT PRICE FOR THE COMPACTOR WAS $42. AWARD WAS MADE TO HYSTER ON DECEMBER 5. THE DELIVERY WAS COMPLETED ON JANUARY 17. CONTENDING THAT (1) YOU DID NOT KNOW THAT THE REPAIR PARTS WOULD BE USED AS AN EVALUATION FACTOR FOR AWARD BECAUSE IT WAS NOT CLEARLY STATED IN THE REQUEST FOR PROPOSAL.

B-165871, MAR. 13, 1969

TO FWD WAGNER, INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23, 1968, WITH ENCLOSURES, IN WHICH YOU PROTESTED THE AWARD OF A CONTRACT TO HYSTER CORPORATION, UNDER REQUEST FOR PROPOSALS NO. DAAK01-69-R-3254, ISSUED BY THE U.S. ARMY MOBILITY EQUIPMENT COMMAND, ST. LOUIS, MISSOURI, FOR 18 SELF-PROPELLED AND SEGMENTED COMPACTORS.

THE SUBJECT RFP WAS ISSUED ON OCTOBER 30, 1968, PURSUANT TO 10 U.S.C. 2304 (A) (2) WHICH AUTHORIZES PROCUREMENT BY NEGOTIATION INSTEAD OF FORMAL ADVERTISING IF THE PUBLIC EXIGENCY WILL NOT PERMIT DELAY, BECAUSE THE COMPACTORS WERE PART OF THE URGENT HIGHWAY RESTORATION PROGRAM IN VIETNAM AND WERE ASSIGNED A PRIORITY DESIGNATOR 02.

THE SCHEDULE OF SUBJECT RFP SOUGHT PRICE QUOTATIONS ON FIVE ITEMS: (1) COMPACTORS, (2) MANUFACTURER'S RECOMMEND REPAIR PARTS, (3) SPECIAL TOOLS, (4) COMMERCIAL MANUALS AND (5) MANUFACTURER'S FIELD SERVICES. NOTE 2 ON THE BOTTOM OF THE SCHEDULE STATED THAT MANUFACTURER'S FIELD SERVICES WOULD NOT BE USED IN EVALUATION OF THE AWARD. HOWEVER, NOTE 3 OF PARAGRAPH 37 OF THE ADDITIONAL SOLICITATION INSTRUCTIONS AND CONDITIONS REQUIRED THAT OFFERORS SUBMIT MANUFACTURER'S RECOMMENDED REPAIR PARTS LIST AND SPECIAL TOOLS LIST FOR EVALUATION.

HYSTER COMPANY'S FINAL OFFER WAS AT $42,924.00 FOR EACH COMPACTOR, $15,788.56 FOR REPAIR PARTS AND $345.00 FOR COMMERCIAL MANUALS, IN A TOTAL AMOUNT OF $788,765.56. YOU SUBMITTED PRICES AGGREGATING THE TOTAL AMOUNT OF $845,942 ALTHOUGH YOUR FINAL UNIT PRICE FOR THE COMPACTOR WAS $42,025, OR $899 LESS THAN THAT OF HYSTER COMPANY. AWARD WAS MADE TO HYSTER ON DECEMBER 5, 1968, AND THE DELIVERY WAS COMPLETED ON JANUARY 17, 1969.

BY LETTER DATED DECEMBER 23, 1968, YOU PROTESTED AGAINST THE AWARD TO HYSTER COMPANY, CONTENDING THAT (1) YOU DID NOT KNOW THAT THE REPAIR PARTS WOULD BE USED AS AN EVALUATION FACTOR FOR AWARD BECAUSE IT WAS NOT CLEARLY STATED IN THE REQUEST FOR PROPOSAL, AND (2) THAT EVALUATION AND AWARD ON THE TOTAL PRICE BASIS WAS NOT PROPER. YOU FURTHER CONTENDED THAT THE EVALUATION OF REPAIR PARTS NEEDED IS A CONJECTURE, BECAUSE NO OFFEROR CAN DETERMINE THE ATTRITION RATE OF THE COMPACTORS UNDER COMBAT CONDITIONS.

CONCERNING THE REQUIREMENT THAT THE BASIS FOR EVALUATION BE MADE AS CLEAR AS POSSIBLE SO THAT ALL OFFERORS CAN PROCEED FROM AN EQUAL FOOTING, OUR OFFICE HAS HELD THAT SOUND PROCUREMENT POLICY DICTATES THAT OFFERORS BE INFORMED OF ALL EVALUATION FACTORS AND OF THE RELATIVE WEIGHTS TO BE ATTACHED TO EACH FACTOR. SEE 44 COMP. GEN. 439; 47 ID. 252.

IN THE SUBJECT PROPOSAL, NOT ONLY NOTE 3 OF PARAGRAPH 37 AND NOTE 2 OF THE SCHEDULE DISCLOSED WHAT ITEMS WOULD AND WOULD NOT BE CONSIDERED FOR EVALUATION, BUT ARTICLE 3, REPAIR PARTS OPTION, CLEARLY STATED THAT THE OPTION PROVISION WOULD BE INAPPLICABLE IF PARTS WERE ORDERED IN THE AWARD. BASED ON THE FOREGOING WE MUST CONCLUDE THAT THE SUBJECT PROPOSAL CLEARLY DISCLOSED THAT THE REPAIR PARTS REQUIRED FOR ONE YEAR'S OPERATION, WHICH WERE IN FACT INCLUDED IN THE AWARD, WOULD BE A DEFINITE EVALUATION FACTOR SINCE IT AFFECTED THE OVERALL COST TO THE GOVERNMENT. THE REPAIR PARTS COSTS HAD TO BE CONSIDERED BY THE GOVERNMENT IN ITS EVALUATION IN ORDER TO DETERMINE THE MOST ADVANTAGEOUS OFFER. IN ADDITION, THOSE REPAIR PARTS YOU INDICATED AS NEEDED SOLELY DUE TO COMBAT CONDITIONS WERE NOT CONSIDERED IN THE EVALUATION OF YOUR BID. THEREFORE, YOUR PROPOSAL WAS REDUCED TO $89,802 FOR THAT ITEM. THUS, YOU WERE NOT PREJUDICED BY YOUR ESTIMATE OF REPAIR PARTS WHICH MIGHT BE NEEDED UNDER COMBAT CONDITIONS.

YOUR FINAL DELIVERY SCHEDULE OFFERED 15 COMPACTORS TO BE DELIVERED BY JANUARY 15 AND THE REMAINING THREE COMPACTORS BY FEBRUARY 15, 1969, ALTHOUGH YOU WERE AFFORDED THE OPPORTUNITY DURING NEGOTIATIONS TO IMPROVE YOUR SCHEDULE. SINCE PRIORITY DESIGNATOR 02 WAS ASSIGNED TO THE COMPACTORS, THE PROCURING AGENCY ADVISED US THAT YOUR DELIVERY SCHEDULE COULD NOT MEET THE GOVERNMENT'S REQUIRED DELIVERY WHICH WAS CLEARLY STATED IN THE RFP AS 45 DAYS. ASSUMING, ARGUENDO, THAT YOUR PROPOSAL DID OFFER THE LOWEST PRICE, YOUR NONCONFORMITY TO THE GOVERNMENT'S DELIVERY SCHEDULE WOULD HAVE CONSTITUTED A BASIS FOR NOT AWARDING THE SUBJECT CONTRACT.

LASTLY, YOU CONTEND THAT THE COMPACTORS SUPPLIED BY HYSTER DID NOT MEET THE TECHNICAL SPECIFICATION REQUIREMENTS. THE ENGINEERING EVALUATION DISCLOSED THAT EXCEPTIONS TO THE PURCHASE DESCRIPTION WERE TAKEN BY ALL OFFERORS INCLUDING YOURSELF. HOWEVER, THE EXCEPTIONS TAKEN BY YOU AND HYSTER WERE NOT FOUND TO BE MATERIAL. CONCERNING THE HYSTER PROPOSAL, THE EVALUATIONS STATED IN PART THAT: "THE HYSTER COMPANY PROPOSES TO SUPPLY THE MODEL 450C COMPACTOR. ALTHOUGH RADICALLY DIFFERENT IN ENGINEERING DESIGN, THE MODEL 450C WILL PERFORM THE SAME COMPACTION FUNCTION WITHIN THE SAME TIME FRAME AS OTHER MANUFACTURER'S MODELS. IN SOME CASES IT WILL PERFORM THE FUNCTION IN LESS TIME.'

THE FACTUAL EVALUATION OF THE CONFORMABILITY OF THE OFFERED EQUIPMENT TO THE SPECIFICATION IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING ACTIVITY. FOR TECHNICAL DETERMINATIONS OF THIS NATURE, WE MUST ORDINARILY RELY ON THE JUDGMENT AND EXPERTISE OF THE ENGINEERING PERSONNEL OF THE PROCURING AGENCY. ON THE BASIS OF THIS RECORD, WE CANNOT SAY THAT THE ACCEPTANCE OF HYSTER'S COMPACTOR WAS ARBITRARY, CAPRICIOUS, OR IN BAD FAITH. CONSEQUENTLY, OUR OFFICE WILL NOT QUESTION THIS ACTION. SEE B- 165050, NOVEMBER 21, 1968; 38 COMP. GEN. 71, 75; 36 COMP. GEN. 251, 252.

FOR THE REASONS SET FORTH ABOVE, WE CONCLUDE THAT THERE IS NO ADEQUATE LEGAL BASIS UPON WHICH WE MAY OBJECT TO THE AWARD IN THIS CASE, AND YOUR PROTEST IS THEREFORE DENIED.